Written by Andrew Tiedt
April 18, 2016
The High Court has allowed an appeal by a man convicted of intentionally infecting his partner with HIV.
Godfrey Zaburoni was tried in Queensland for the offence of Unlawfully Transmitting a Serious Disease to Another with Intent to do so. This is one of the most serious offences on the books in Queensland, and carries a maximum penalty of life imprisonment. He was found guilty and was sentenced to nine and a half years in gaol.
Zaburoni had accepted that he did in fact transmit HIV to his then partner through unprotected sexual intercourse. He also admitted that he knew he was HIV positive and that he had lied to her about this during their relationship.
The issue at trial was whether he intended to transmit HIV to her, or whether he was simply reckless as to whether it happened.
Recklessness has a particular definition in the criminal law. Typically it means that you know that a consequence might follow from you taking a particular action, but you take that action anyway. A simple example is someone who sets a bomb in a building with a timer to explode in the middle of the night having considered that people may well be present but setting the bomb anyway. That person would know that someone might be killed by taking this action, but might not actually intend that to occur.
Legally, we would say that the person was reckless as to whether someone might be killed. In those circumstances, that person could then be convicted of murder, even they may not have literally intended that someone die.
In the case of Zaburoni, the particular charge laid against him required that an intention to transmit the disease be proved – mere recklessness was not enough.
A jury found him guilty, and the Queensland appeal courts rejected his appeal. The High Court disagreed.
The High Court unanimously found that it was reasonably possible that Zaburoni did not have unprotected sex with the victim intending to transmit the disease. They said it is possible that he did so merely to increase his sexual pleasure, and in other words that he was simply reckless as to whether the transmission occurred.
This means that he is guilty of a less serious (but still significant) offence, and the District Court of Queensland will sentence him for that other offence in the near future.